An updated version of this article was published on 12 March 2020. You can access this article here.
Reporting about the spread of COVID-19 over the past few days has caused increased anxiety for many organisations and their employees. It is timely to review your planning and consider how you might respond if the situation in Australia changes, and how you might respond to questions from your staff. We have addressed some of the issues you might be thinking about below.
The World Health Organisation (WHO) is still advising that the chance of infection is ‘currently low’ if you are not in an area where COVID-19 is spreading, have not travelled to those areas nor had contact with someone who has been in those areas. We recommend that employers monitor the WHO website and the Department of Health website for up to date information.
Do you have a plan?
Employers should already have a Pandemic or Infectious Diseases plan setting out how they will address safety and operations in the event of a significant outbreak. You should be reviewing this policy to ensure it meets your current needs. If you do not have a policy in place, you should consider preparing one before you need it.
Should you provide information to employees?
Employees may be anxious about the risk of a pandemic, and could have questions about what will happen to their working arrangements and employment.
Employers have a duty under WHS/OHS legislation to provide information to employees about health and safety in the workplace. You should provide regular updates to employees about the status of COVID-19 that are consistent with information provided by the Department of Health and WHO.
Information updates from employers should promote a culture of respect and understanding amongst employees and avoid creating an environment of fear and discrimination. Employees should also be encouraged to ask questions and share information about their concerns.
Safety regulators in Australia have all published guidance material for employer responses to influenza pandemics generally and we recommend that you familiarise yourself with the guidance material in your jurisdiction. As an example, WorkSafe Victoria provides useful and practical guidance on this issue which can be found here.
We recommend that you provide updates to employees addressing:
- the current status of the virus in Australia (to dispel any myths); and
- advice on good hygiene practices for work and home.
You might also be asked about whether employees will be stood down and/or paid in the event of a pandemic. You should understand your legal obligations and entitlements and consider what you can say at this time, given that no pandemic has been declared.
Health and Safety at work – what do we recommend?
Employers have a duty to eliminate or reduce risks and hazards at work, monitor the health of employees and monitor the conditions at any workplace under their management and control. Given these duties we recommend the following:
General hygiene precautions – time for a reminder
Employers should remind employees and others entering their workplaces of the importance of high personal hygiene standards which are vital to protect against the spread of infection.
- Display signage reminding people to wash their hands regularly and thoroughly. The WHO provides clear advice on hand washing that you may find useful – “Clean hands protect against infection”. A quick splash of water will not do the job.
- Consider installing hand sanitiser dispensers in bathrooms, meeting rooms and high pedestrian traffic areas such as reception areas.
- Remind employees that they should not present at work if they are unwell, and they should sneeze or cough into their elbows and not their hands. Employees who share equipment such as phones or laptops should wipe down this equipment with a sanitising wipe after use.
What about employees who have been in affected areas or who might be contagious?
We recommend that employers ask their employees to notify them immediately, if they:
- have travelled to an affected area since the beginning of 2020; and/or
- are suffering, or have suffered, flu-like symptoms since the virus was first detected.
If the answer to either of these questions is yes, employers should respond according to their Pandemic Plan. This should provide that if an employee is potentially infected and therefore contagious (for example, they have informed you they have been in close contact with someone who has the virus), you can direct them not to attend work during the risk period. You should ask them to seek medical advice and a clearance before returning to work. Employees would ordinarily be entitled to be paid while subject to such a direction. You may consider whether employees in this situation are able to work from home during this time.
Do you need to revisit international travel?
Employers should consider whether any scheduled international business travel is necessary in the current environment. It may be that other communication options will suffice.
You should also review your insurance coverage for upcoming travel. Insurers have set 21 January 2020 as the cut-off date for COVID-19 related claims, being the date when the virus became a ‘known event’ for insurance purposes.
What are you asking clients and visitors to do?
Many of our clients are displaying COVID-19 information material in their reception areas, and/or in email footers that is consistent with guidance coming from the WHO. We suggest you consider this approach to indicate to clients and customers that you have expectations about what they should do while in your workplace.
Are there pockets of fear causing poor behaviour in your organisation?
Fear may also cause some employees to behave inappropriately to colleagues or clients who have recently returned from overseas or who have family overseas. You should monitor this and intervene where necessary to remind employees of their obligations to behave respectfully towards others at work.
What are your obligations if employees are unable to work?
If the situation worsens, employers may need to consider their obligations for each of the scenarios below. We recommend checking your Pandemic Policy to ensure it meets your needs.
The Fair Work Act 2009 provides that employers have a right to stand down employees in certain circumstances. Modern awards, enterprise agreements or employment contracts may also contain stand down provisions and generally such periods are unpaid.
What if your employee can’t attend work because they have or are suspected of having COVID-19 or they are caring for someone in this situation?
In the first instance, employees should use their paid personal/carer’s leave entitlements. If these are exhausted, your employees might wish to consider other alternatives, such as taking annual leave or leave without pay. Employers should request medical clearance prior to an employee returning to work.
What if your employee is quarantined, or unable to return from overseas?
Consider whether the employee can access their paid personal/carer’s leave entitlements or annual leave. You may decide that employees can take other paid or unpaid leave. We recommend a consistent approach taking into account your operational needs. If multiple quarantine events have the effect of creating a stoppage of work the stand down provisions referred to above may apply.
What if your employees want to stay at home as a precaution?
Employees will need to request to work from home or to take some form of paid or unpaid leave. You should treat these requests as you would treat other applications for this type of leave.
What if your operational needs change because of a downturn or supply-chain issues?
The Fair Work Act stand down provisions are likely to apply, subject to any provisions in your employment arrangements, meaning that employees may not be paid. You should consider this issue carefully, including budget impact, if you nevertheless intend to pay employees during any stand down. You should also consider a communication plan if a stand down becomes necessary, and obtain advice if uncertain of your obligations.
Working from home – what to check
You are likely to have a working from home policy or procedure in place. You should check that it meets your needs if employees are subject to quarantine. It is timely to review your IT Systems and business continuity arrangements to ensure the business can continue to operate if a large number of employees need to access IT systems remotely.
A reminder – you need to consult
You should remember that you have obligations to consult on health and safety matters, including in relation to changes you put in place. For many employers a failure to do so may be a breach of your WHS/OHS Act responsibilities.
For updated advice for Australian employees, see here.
If it would help to discuss any of this or if you need further advice, please contact Catherine Dunlop at firstname.lastname@example.org, 03 9258 3633 or 0411 748 310.
|Catherine Dunlop | Partner
T +61 3 9258 3633
|Dale McQualter | Senior Associate
T +61 3 9258 3674
|Gerard Twomey | Associate
T +61 3 9258 3773